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Due process

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Full-Text Articles in Law

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow Oct 2021

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond ...


Bundle Of Joy: Why Same-Sex Married Couples Have A Constitutional Right To Enter Into Gestational Surrogacy Agreements, Benjamin H. Berman Jan 2021

Bundle Of Joy: Why Same-Sex Married Couples Have A Constitutional Right To Enter Into Gestational Surrogacy Agreements, Benjamin H. Berman

Touro Law Review

No abstract provided.


Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman Jan 2021

Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman

Touro Law Review

No abstract provided.


Second-Trimester Abortion Dangertalk, Greer Donley, Jill Wieber Lens Jan 2021

Second-Trimester Abortion Dangertalk, Greer Donley, Jill Wieber Lens

Articles

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale—the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling ...


The Unconstitutional Police, Brandon Hasbrouck Jan 2021

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively ...


State V. Violette: Harsher Resentencing Encounters A Bolder Resumption Of Vindictiveness, Thomas C. Bradley Apr 2020

State V. Violette: Harsher Resentencing Encounters A Bolder Resumption Of Vindictiveness, Thomas C. Bradley

Maine Law Review

Twenty-one years ago, in Weeks v. State, the Maine Supreme Judicial Court, sitting as the Law Court, adopted a rule to prevent judicial vindictiveness when resentencing defendants who had successfully appealed their conviction and been reconvicted. The Weeks court adopted as a state due process protection the United States Supreme Court's rule laid down the preceding year in North Carolina v. Pearce. The Pearce rule provides that harsher resentencing of such defendants creates a presumption of constitutionally prohibited vindictiveness unless the harsher sentence is explicitly based on some identifiable misconduct by the defendant since the prior sentencing. Thus, the ...


Litigating Citizenship, Cassandra B. Robertson, Irina D. Manta Apr 2020

Litigating Citizenship, Cassandra B. Robertson, Irina D. Manta

Vanderbilt Law Review

By what standard of proof-—and by what procedures—-can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously recognized their citizenship for years or even decades. The government has also stepped up efforts to reevaluate the naturalization files of other citizens and has asked for funding to litigate more than a thousand denaturalization cases. Likewise, citizens have gotten swept up in immigration enforcement actions, and thousands of citizens have been erroneously detained or removed ...


State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah Apr 2020

State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah

Dickinson Law Review

In order to prevent further overuse of prescription opioids, states have adopted a variety of strategies. This article summarizes the growing use of prescription drug monitoring programs, crackdowns on “pill mills,” prohibitions on the use of particularly hazardous opioids, limitations on the duration and dosage of prescribed opioids, excise taxes, physician education and patient disclosure requirements, public awareness campaigns, and drug take-back programs. Although occasionally challenged on constitutional grounds, including claims of federal preemption under the Supremacy Clause, discrimination against out-of-state businesses under the dormant Commerce Clause doctrine, and interference with rights of commercial free speech, this article evaluates the ...


Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza Jan 2020

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.


The Inconvenience Of Justice: How Unmitigated Official Misconduct Almost Destroyed The Lives Of Five Young Boys From Harlem, Stefania Bordone, David Wright Jan 2020

The Inconvenience Of Justice: How Unmitigated Official Misconduct Almost Destroyed The Lives Of Five Young Boys From Harlem, Stefania Bordone, David Wright

Journal of Race, Gender, and Ethnicity

No abstract provided.


Confessions, Convictions And Controversy: An Examination Of False Confessions Leading To Wrongful Convictions In The United States Throughout History, Kirandeep Kaur Jan 2020

Confessions, Convictions And Controversy: An Examination Of False Confessions Leading To Wrongful Convictions In The United States Throughout History, Kirandeep Kaur

Journal of Race, Gender, and Ethnicity

No abstract provided.


Reconceptualizing Hybrid Rights, Dan T. Coenen Jan 2020

Reconceptualizing Hybrid Rights, Dan T. Coenen

Scholarly Works

In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and ...


Response, Making Litigating Citizenship More Fair, Ming H. Chen Jan 2020

Response, Making Litigating Citizenship More Fair, Ming H. Chen

Articles

No abstract provided.


Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton Jan 2020

Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

Articles

No abstract provided.


Due Process Supreme Court Rockland County Jul 2019

Due Process Supreme Court Rockland County

Touro Law Review

No abstract provided.


Due Process Supreme Court Appellate Division Jul 2019

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.


Due Process Pringle V. Wolfe (Decided 28, 1996) Jul 2019

Due Process Pringle V. Wolfe (Decided 28, 1996)

Touro Law Review

No abstract provided.


Notice, Due Process, And Voter Registration Purges, Anthony J. Gaughan May 2019

Notice, Due Process, And Voter Registration Purges, Anthony J. Gaughan

Cleveland State Law Review

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority ruled that the Ohio law complied with the National Voter Registration Act of 1993 (NVRA) as amended by the Help America Vote Act of 2002 (HAVA). This Article contends that the controlling federal law—the NVRA and HAVA—gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this ...


Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight May 2019

Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight

Cleveland State Law Review

Rape and sexual assault laws and policies have shifted significantly in recent years, including the introduction of affirmative consent. Unfortunately, both proponents and critics tend to confuse the issues and falsely equate affirmative consent as a substantive social standard versus a procedural standard for adjudication and punishment. Although affirmative consent generally does not represent a significant change in consent law in the United States, statutes and policies requiring a further requirement that affirmative consent be clear and unambiguous (“clear affirmative consent”) are problematic and raise constitutional concerns. When clear affirmative consent policies are used as an adjudicative standard, they increase ...


The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, George Rutherglen Mar 2019

The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, George Rutherglen

San Diego Law Review

Procedure aspires to lofty goals: fairness, efficiency, and speedy adjudication, or so says Rule 1. The rule states the aims of the Federal Rules of Civil Procedure in admirably succinct terms: “They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Who could oppose any of these goals? Yet for all its virtues as a concise summary of what the Federal Rules seek to achieve, this provision cannot be taken literally as a guide to interpretation. The goals it aspires to are, on even a cursory examination, deeply inconsistent with each ...


Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti Mar 2019

Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti

San Diego Law Review

The Supreme Court lacks a coherent approach to deciding how much to defer to state legislatures when reviewing allegedly unconstitutional legislation. The Court grants very little deference to state legislatures in dormant Commerce Clause cases but significant deference to state legislatures in Fourteenth Amendment cases. The Court has never acknowledged this divergence, let alone justified it. Scholars have also failed to note this divergence or explore whether it can be justified. By ignoring this divergence, the Court and scholars have ignored a situation that exacerbates existing power imbalances and fails to recognize a more promising approach to judicial deference.

This ...


Constructing The Original Scope Of Constitutional Rights, Nathan Chapman Jan 2019

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

Scholarly Works

In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration ...


Some Kind Of Hearing Officer, Kent H. Barnett Jan 2019

Some Kind Of Hearing Officer, Kent H. Barnett

Scholarly Works

In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to ...


Solitary Confinement Of Juvenile Offenders And Pre-Trial Detainees, Nicole Johnson Jan 2019

Solitary Confinement Of Juvenile Offenders And Pre-Trial Detainees, Nicole Johnson

Touro Law Review

No abstract provided.


The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon Jan 2019

The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of ...


Wealth-Based Penal Disenfranchisement, Beth A. Colgan Jan 2019

Wealth-Based Penal Disenfranchisement, Beth A. Colgan

Vanderbilt Law Review

This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions-fines, fees, surcharges, and restitution-may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for reenfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal ...


Democratic Policing Before The Due Process Revolution, Sarah Seo Jan 2019

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which ...


Commitment Through Fear: Mandatory Jury Trials And Substantive Due Process Violations In The Civil Commitment Of Sex Offenders In Illinois, Michael Zolfo Aug 2018

Commitment Through Fear: Mandatory Jury Trials And Substantive Due Process Violations In The Civil Commitment Of Sex Offenders In Illinois, Michael Zolfo

Chicago-Kent Law Review

In Illinois, a person deemed a Sexually Violent Person (“SVP”) in a civil trial can be detained indefinitely in treatment facilities that functionally serve as prisons. SVPs are not afforded the right to waive a jury trial, a right that criminal defendants enjoy. This results in SVPs facing juries that treat sex offenders as monsters or sub-humans, due to often sensationalistic media coverage and the use of sex offenders as boogeymen in political campaigns. The lack of a jury trial waiver results in more individuals being deemed SVPs, depriving many of their liberty without the due process of law, a ...


After All These Years, Lochner Was Not Crazy—It Was Good, Randy E. Barnett Jul 2018

After All These Years, Lochner Was Not Crazy—It Was Good, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.


Forgotten Cases: Worthen V. Thomas, David F. Forte May 2018

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only after ...